R-2019-0112 - 2/14/2019 RESOLUTION NO. R-2019-0112
WHEREAS, the City of Round ("City") desires to enter into a Development Agreement with
the Round Rock Transportation and Economic Development Corporation and M4 Greetilawn, LLC
regarding the proposed project located south of SlJ 45 and north ofGreenlawn Boulevard, known as
The District development, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute a Development Agreement with
the Round Rock Transportation and Economic Development Corporation and M4 Greenlawn, LL,C, a
copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes.
I]"he City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof"were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 14th day of February, 2019.
CRATGORGA Mayor
City of�o Vck. Texas
ATTEST:
SARA L WHITE, City Clerk
0112.!902;00417796
EXHIBIT
"A"
DEVELOPMENT AGREEMENT
This Development Agreement is entered into to be effective as of the
day of"I'll1.111111 1.1.111.1 1 - ----1 2019 (the "Effective Date"), by and among the City of"Round Rock,
"Texas (the "(Jfy"), a home rule city organized Laider the laws of the State of Texas, the Round
Rock Transportation and Economic Development Corporation, a "'Type B corporation" created
Linder the authority of Chapter 501, 'Texas Local Government Code (the "'1 EDCo�r ."), and M4
Greenlawn, LLC, a California limited liability company (the "Developer"). The City, the 'TED
Corp., and the Developer are collectively, the "Parties" to this Agreement.
RECITALS
WHEREAS, the Developer is a developer of commercial developments; and
WHEREAS, the Developer is the owner ot'65.492 acres of land (the "ProY
P-e tocated
K-
south of SH 45 and north of Greenlawn Blvd, as described in Exhibit A; and
WHER.EAS, the Developer is considering the construction of a master-planned mixed-use
project (the "L'r
gj t") on the Property, and
WHEREAS, it is currently envisioned that the Project will include approxinlately one
million (1,000,000) square feet of commercial office, hospitality, retail, service, residential, and
parking structure construction (collectively, the".In MmeM, "); and
WHEREAS, the Developer intends to spend or cause to be spent over -Two Hundred
Million Dollars ($200,000,000M) to acquire, design and develop the Project and any other
improvements thereon at full buildout (including all hard and soft costs); and
WHER,EAS, the Project is anticipated to add millions of dollars in property tax base,
generate millions of dollars in new sales tax and property tax revenues in the City; and
WHER,EAS, the City and "FED Corp. desire development such as the Project to locate in
the City; and
WHEREAS, the City and/or 'FED Corp., as applicable, are willing to consider making
expenditures to reirnburse the Developer Lip to 'rweive million Five Hundred Sixty '"Fliousand
Dollars ($12,560,00( ,00) (the "M'ax-it'r-i-urn-ReirnbUl"Sernerit Amount"') for the cost of the Public
Improvements, as defined herein, necessary to promote or develop the Project.ill the City; and
WHEREAS, the City has adopted Resolution No. R-2019- ...... (the "Aut-tioriz-iflz
Resolution"), authorizing the Mayor to enter into this Agreement on behalf'of the City with the
--l-111------------- g
Developer in recognition of the positive econornic benefits to the City tbrough development of the
Project on the Property; and
WHEREAS, the TED Corp. has authorized its President to enter into this Agreement on
behalf of TED Corp. with the Developer in recognition of the positive economic benefits to the
City through development of the Project on the Property; and
WHEREAS, the TED Corp. has found that the Public Improvements are require(] or
Suitable to promote or develop new business enterprises, pursuant to §501.103 of the Texas Local
Government Code; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
PURPOSE AND Ii" TERPRETA,rION'
1.01 L)Ljjjectives.
(a) The Developer has designated the city of Round Rock,Texas and the Property as a
potential location for the Project. The Developer or its affiliates currently owns and operates other
commercial projects in multiple locations in several states, The Developer sees an opportunity to
expand its existing presence in the City, and to play a significant role in the future development of
the City, The City believes that the development of the project will attract additional businesses,
I
development, and investment in the(.1I ity in particular and Williamson County in general.The City
recognizes that development ofthe Project will likely serve as an ecouOrniC Stil-oUlUS to the area,
resulting in significant jot) growth and increased tax revenue for the City, the Round Rock ISD,
and Williamson County.
(b) The Parties acknowledge that the present infrastructure of streets and utilities in the
vicinity of the Property is insufficient to support the Project. In order to encourage the Developer
to locate the Project on the Property, the Developer has requested that the City and/or the TED
(.'carp. reimburse the Developer for the cost of' the Public Improvements, up to the Maximum
Reimbursement Arnount, as described in Section 6.0 3,
1.02 once at and Struettire. Development of' the Property will include tile Public
improvements and the Project, which may occur on one or more separately platted lots or other
legal parcels. `17 fie Developer will be responsible for the development and constn,iction of the
Project and Public Improvenients. The Public Improvements will be financed and constructed as
set forth in Sections 6.02 an(I 6.03. The Developer will operate and maintain the Project.
2
1.03 Interpretation. In this Agreement, unless a clear contrary intention appears;
(a) the singular number includes the Plural number and vice versa;
(b) reference to any Party includes such Party's successors and assigns but, if
applicable, only if such successors and assigns are permitted by this Agreement, and reference to
a Party in a particular capacity excludes such Party in any other capacity or individually;
(c) reference to any agreement, document or instrument means such agrectrient,
document or instrument as amended or modified and in effect frorn time to time in accordance
With the terms thereof,
(d) "hereunder", "hereof', "hereto", and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular article, section or other provision
thereof,
(e) "Including" (and with correlative meaning "include") means including without
limiting the generality of any description preceding such tenni; and
(t) reference to any constitutional, statutory or regulatory provision means such
provision as it exists on the Effective Date and any amendatory provision thereof or suppler-flental
provision thereto.
1.04 Le Fal Representation of the Parties.This Agreement Was negotiate(]by the Parties hereto
With the benefit of`legal representation and any rules of'constrUCtiOn. or interpretation otherwise
requiring this Agreement to be construed or interpreted against any Party shall not apply.
AWFlC1,E 11
DEFINITIONS
2.01 Definitions. All capitalized terms used in this Agreement shall have the meanings
ascribed to them in this Article 11, or as otherwise provided herein.
"Agreement" means this Development Agreement by and among the City, the"FED Corp.,
and the Developer.
"City" means the City of Round bock,Texas,
"City Council" means the City COL11161 ofthe City,
"Developer" means M4 Greentawn, LI-X", at.Calif'ot-nia limited liability company.
3
"Greenlawn Blvd. Improvements" mean the improvements to Greenlawn Blvd. as
described in Exhibit D.
"Improvements" mean the approximately 1,000,000 square feet of commercial office,
hospitality, retail, service, residential, and parking structure construction.
"Maxim urn Reimbursement Amount" means $12,560,000.
"Parties" means the City, theTED Corp., and the Developer,
"Party" mean,,; the City or theTED Corp. or the Developer.
"Project" means a master-planned mixed-use project as described in Article V. The
Project does not include the Public Improvements or the Greenlawn Blvd. Improvements.
"Property" means the real property described and shown on Exhibit A.
"Public Improvements" means the public improvements described in Exhibit B and
includes any improvement or facility together with its associated public site, right-of-way or
easement necessary to provide transportation, drainage, public utilities, or similar essential public
services and facilities, for which the City will ultimately assume the responsibility for maintenance
and operation or ownership, (,.,)r both. This term also includes the foltowing: drainage facilities,
streets and other rights-of-way, potable water system, reuse water system, sanitary sewerage
system, survey monuments, illumination including street lights, traffic control signs and traffic
signalization, fire hydrants, sidewalks and curb ramps, street name signs, traffic control signs,
street pavement markings, and parkland and open space improvements.
"Required Investment Amount" rneans Two I lundred Million Dollars
($200,000,000M).
"TED Corp." means the Round Rock Transportation and Economic Developirient
Corporation.
ARTICLE III
GRANT OF EASEMENTS
3.01 Public Improvement Easements. The Parties agree that the transportation and utility
facilities currently In existence are not adequate to provide acceptable service to the Property and
the Project. It is therefore understood that the Public Irriprovernents will be necessary to adequately
4
serve the Property and Project. It is also understood that it inay become necessary or convenient
to install and/or construct the Public Improvements on, over, across, and/car under the Property in
a location and design reasonably acceptable to Developer. Upon completion of the Public
Improvements and payment ofthe Maximum Reimbursement amount to Developer from the City,
Developer agrees to convey to the City, at no charge, (a) the land under the applicable roads and
sidewalks, the locations of which are further depicted in Exhibit B attached hereto, that are part
ofthe Public Improvements and(b)all necessary easements in the location of the applicable Public
improvements (including the water, wastewater, and storm sewer utilities and the landscape and
irrigation in the medians), in each case to the extent reasonably required for the City's use and
maintenance of the Public Improveirients and Developer shall dedicate such Public briprovcments
to the City via the plat for the Property and the City shall accept same upon completion of the
applicable Public Improvements and inspection oil' same. In addition, it) the event Developer
requires access to or the use ofaqjacent property owned by third parties for the construction, use,
or maintenance of the Public Improvements, the City will cooperate with and assist Developer in
either acquiring casements over such property owned by third parties and in pursuing
condemnation of`such third-party property as reasonably necessary to permit the construction, use
and maintenance of the Public Improvements, Notwithstanding the foregoing, Developer shall
have the option to purchase the land under the applicable roads, the locations of which are filrther
depicted in Exhibit B attached hereto, for the lesser of(a) the appraised value of the applicable
land and (b) Twelve Million F'iVe Hundred Sixty Thousand Dollars ($12,560,000.00) (the
"PurchOi)tio
ase n") by providing written notice to the City (the"Purchase Notice"), If'Developer
..........
exercises the Purchase Option, upon conveyance of`the roadways to Developer, such roads will
become private roads. Along with the Purchase Notice, Developer shall provide a purchase and
sale agreement (the "PSA") to the City. (..)'Pon Developer's exercise of the Purchase Option, the
Parties agyree that they will work. together in good frith to execute the PSA and the City agrees to
,
convey the land Under the applicable roads to Developer pursuant to the terms and conditions of
the PSA, vic foregoing Purchase Option shall Survive the expiration or termination of this
Agreement and such Purchase Option shall be set forth in the dedication deed to the City at such
tin,ic as Developer initially dedicates the roadways to the (pity. Notwithstanding the Foregoing,
Developer shall receive a credit against the Purchase Option equal to the sung of the Hurdle
ReinibUrsenicni: Amounts, to the extent that the Hurdle Reinibursernent Amounts are paid to City
and/or'11".1) Corp., as applicable, by Developer pursuant to Section 6.03 hereof,
ARTICLE IV
ZONING 017'rim PROPFRTY
4.01 Current Zoning. The, Property is currently zoned general conu-nercial (CI-a). The current
zoning is inconsistent with the plans to develop the mixed-use Pi-qject on the Property, The Parties
agree that they will work togcthcr in good faith on a fiast-track basis to re-zonc the Property with
a base zoning of MIJ41 along with a Planned Unit Dcvclopincrit(the'T—rPjcct,Pt Jr)") for land uses
5
that are consistent with the tenris of this Agreement and the design intent of the Project, with uses
and restrictions at rninimum described by the Dell/La Frontera Mixed-Use section of Round
Rock's General Plan 2020, Regardless of anything herein to the contrary, nothing herein shall be
construed as a contractual obligation on the part of the City to rezone the Property. Furthermore,
the City agrees to conduct concurrent reviews of all submitted proposals and applications
including, but not limited to the Project PUD, concept plan, sub division. plan and infrastructure
irnprovement.plan.
ARTICLE V
'rHE PROJEcr
5.01 (general Description. The Project will be planned, developed and constnicted on the
Property by Developer in phases as determined by Developer and otherwise in accordance with
any permits and approvals from any applicable govemmental authorities, The Project will be a
master-planned, mixed-use development which will contain a total of approximately one million
(1,000,000) square feet of firiprovernerits at such time as the Project is fully constructed, to be
comprised of residential, retail, and office space. In addition, the Project may include
entertai.runent, recreation, and other uses of the Property permitted by the Project
ject PUD as may be
arriended from tirne to tirne. 1"he Project will be developed in phases,
as determined by Developer
based on market conditions and in Developer's sole and absolute discretion. Developer may sell
or lease portions of the Property to third parties for such third party to develop or manage Such
portion of the Project, and such conveyance or lease shall not be considered an assignment of this
Agreement.
5.02 Amount of Investment. llie Developer agrees to spend or cause to be spent a Cumulative
total of at least Two Hundred Million Dollars ($200,000,(:3W00) (the "jMired Investment
Arriount") in a combination of the following: (i) the acquisition of the Property; (ii) the design and
permitting of the Project; (iii) and the construction of the Project and any and all other
improvements thereon at full buildout(including all hard and soft costs).The Required Investrrient
Amount does not include any costs of the Greenlawn Blvd. Improvements or the Maximum
Reimbursement Amount,
5.03 Jobs. Developer estimates that the Project, upon full build-out, will result in the creation
of primary and secondary,jobs that will total approximately rive thousand (5,000).
5.04 Construction Schedule. The Parties agree that it is their intention that, subject to
adjustments for Events of Force Majeure, (i) the Public 1,11.1provernents will be substantially
completed no later than the third anniversary of the Effective Date of this Agreement, (ii)
Developer will obtain a temporary certificate of occupancy (or similar) for shell improvements
totaling at least 120,000 gross square tcet no later than the third anniversary of the Effective Date
6
of this Agreement, (iii)the Developer will obtain a temporary certificate of occupancy(or similar)
for shell ii,riprovernents totaling at ]cast 250,000 gross square feet no later than the tenth
anniversary of the Effective Date ol7this ect Agreement, and (iv) the construction of the entire Pro
In J
totaling at least 1,000,000 gross square feet will be completed (as evidenced by temporary
certificates of' occupancy (or similar) for the shell improvements) no later than the twentieth
anniversary of the Effective Date of this Ag
,rcernent. '['he Parties further agree that it is their
intention to use their best efforts to work together to finalize as reasonable development schedule
no later than September 30, 2019 Cor the design and construction of the Public Improvements and
the (Ireenlawn Blvd, Improvements that are consistent with the aforesaid goals (the "Public
!Lnprp,!ement Constj�LcfiQp. cdnle").
ARTICLE VI
PUBLIC IMPROVEMENTS
6.01 General. It is understood that extension and irnprovcryients to the transportation and utility
facilities and the other Public Irriprovernents will be necessary to adequately serve the Property
and Project.
6.02 Public Improvements, 'The Public Irnprovenients required for the Project are described
in Exhibit B. The Developer shall be responsible for the design and construction of`the Public
Improvements, Developer shall design and construct the Public Improveincrits in accordance with
the ordinances and regulations of the City and the City agrees to utilize its expedited review process
related to the design,
, permitting, and inspection process for the Public Improvements. The design
of the Public Improvements shall be subject to the approval of the City in accordance with its
standard procedures for the expedited review process, which approval shall not be unreasonably
delayed, conditioned or withhold. The construction of the Public Improvements shall be subject to
the inspection of the City, which inspection and approval shall not be unreasonably delayed,
conditioned or withheld. The City agrees to expedite all review in(] approval procedures, 'The
Parties agr-ee to utilize their best efforts forts to complete the construction of the Public Improvements
in accordance with the Public Improvement Construction Schedule described in Section 5.04.
6.03 Cost of Pu Improvements. Subject to the f'ollowing, the Developer shall initially bear
the cost of'designing and constructing the Public Improvements. Upon completion ofany segment
L�
of the Public linproverrients categories listed on. Exhibit B and final acceptance of"such segment
lity, the City will notify the 'TED Corp. of the
of the Public Improvements category by the C
completion and acceptwice of sarne, and the City and/or TED Corp,, as appli cable, shall reimburse
Developer within a conirnercially reasonable period of time Ibr the value of such completed
scgirient of the Public Improvements category, as such category value is described on Exhibit B
attached hereto, but not to exceed the Maxii-nUrn RcimbUrseirient Amount, The City agrees to
expedite all inspection and acceptance procedures for the Public Improvements.
1
Notwithstanding the foregoing, in the event the Developer does not substantially complete
pursuant to the terms contained herein:
a. the 120,000 gross square feet of I rnpro vein ents on or before the second (2 `r) anniversary
of the deadline set forth in Section 5.04(ii)above(subject to adjustment for Events of Force
Majeure or as otherwise reasonably agreed in writing by the Parties hereto) (such date
being; the "First Hurdle Date"), their the Developer shall refund to the City and/or TED
Corp. as applicable, a proportionate share of the Maximum, Reimbursement Amount
previously delivered to Developer (the "First Hurdle Reimbursement Arriount"), J'he
calculation of the First.1-furdle Reimbursement Amount is described in Exhibit E attached
hereto;
b. the 250,000 gross square feet of Improvements on or before the deadline set forth in
Section 5.04(iii) above(subject to adjustment for Events of"Force Majeure or as otherwise
reasonably agreed in writing by the Parties hereto) (such date being the 4''Se' 'and Hurdle
T)at "), then the Developer shall refund to the City and/or TED Corp. as applicable, a
proportionate share of the Maximum Reimbursement Amount previously delivered to
Developer(the"Second Hurdle Reimbursement Arnount"). The calculation of the Second
Hurdle Reimbursenrent Amount is described in Exhibit E attached hereto; or
c. all of the Improvements on or before the deadline set forth in Section 5.04(iv) above
(Subject to adjustment for Events of Force ]Majeure or as otherwise agreed in writing by
the Parties hereto) (such date being the "Third Hurdle Date"), then the Developer shall
refund to the City arid/or TED Corp. as applicable, a proportionate share of the Maximum
Reimbursement Amount previously delivered to Developer (the "Third Hurdle
Reirribursernerit Amount"). The calculation of the "I"hird Hurdle Reimbursement Amount
is described in Exhibit E attached hereto.
The First Hurdle Date, the Second Hurdle Date, and the Third Hurdle date are collectively referred
to as the "Ht'jrdle Dates" and each may be individually referred to a "f--I urdle---D-ate" T
. he First
Hurdle Reimbursement Amount, the Second Hurdle Reimbursement Amount, and the Third
Hurdle Reirriburserrient Arnount are collectively referred to as the "E'-furdle-'R-eirabursement
Amounts" and each may be individually rcf�crred to as a"Hurdle Reimbursement Amount".
In the event Developer is required to refund any portion ofthe Maximum Reimbursement Arriount
pursuant to Section 6,03(a), Section 6.03(b),or Section 6.03(c)due to failure to achieve substantial
completion of the required gross square footage for the applicable hurdle Date, at such time as
Developer achieves 100% of the required gross square footage required f'or the applicable Hurdle
Date, Developer may submit to the City and/orTED Corp, as applicable, a Notice that such gross
8
square footage has been constructed by Developer and request repayment of the arn(Aint previously
refunded by Developer to the City and/or TED Corp. as applicable(excluding any Interest Amount
paid to the City and/or TED Corp, with such refunded atuount), plus the Interest Amount (",]Lre to
Developer from the City and/or TED Corp calculated from the date Developer pays any of the
Reimbursement Arnounts to the City and./or`l ED Corp., as applicable, to the date City arid/orTED
Corp., as applicable, refunds any amount to Developer is described in this Section. Any such
Notice requesting repayment of the amount previously refunded by Developer pursuant to this
paragraph following the"Third Hurdle Date must be submitted on or before the 2`1 anniversary of
the Third Hurdle Date.
Any amounts refunded by the Developer to the City and/or TED Corp, as applicable pursuant to
this Section 6.03, as well as any amounts recouped by the Developer ftorri the City and/or TED
Corp., as applicable, pursuant to this Section 6.03 shall include an interest payment in an amount
equal to 2.5% per year of the amount being refunded or repaid, non-curnulative and compounded
annually (the"Interest Arnotint"),
Any such amounts due by Developer to City andlor '"FED Corp. pursuant to this Section shall be
payable within ninety(90)days of Developer's receipt of-written Notice from the Cityand/or TED
Corp., as applicable, which request must be made, if at all, within thirty (30) days following the
applicable Hurdle Date, Any such amounts due by the City arid/or TED Corp., as applicable,
pursuant to this Section shall be payable within ninety(90) (lays of the City's and/orTED Corp's
receipt of written Notice from the Developer evidencing achievement of' 100%of the gross square
footage reqUirernents fbi- the latest Hurdle Date to have occurred.
6.04 Greciflawn Blvd. Improvements. The City shall be responsible for the design and
construction of improvements to Greenlawn Boulevard (the"Greenlawn Blvd,Jtji2rgyq�z7c s") as
further described in .Exhibit D.City shall clesign and construct the Greenlawn Blvd. Improvements
in accordance with the Public Improvement Construction Schedule.
6.05 Sidewalk Use, As part of the Public Improvements, Developer agrees to construct public
sidewalks that are at least, five feet (5') wide, If Developer elects to construct sidewalks that are
wider than five feet (5'), then the Developer shall have the right to use that portion of the sidewalk
in excess cif five fee(5') wideforany and all uses not in violation.of applicable laws,
V11
ADDI'LIONAL CONSIDERATION
7.01 Greenlawn Right-of-Way. Within sixty (60) days of receipt of written request from the
City(the "('o)t)y ,�uicct ")
J.)�L , Develop er agrees to convey to the City, puAia
rnt to the terms and
_
9
conditions contained in this section,additional right-of-way along(3yreenlawn Boulevard necessary
for the future widening and improvement of Greenlawn Boulevard (the "(rrecrilawnii 97A--of--
Wa ")."I'lie Greenlawn Right-of-Way shall in no event exceed more than Tw enty-11ree'I'lio u sand
Five Hundred Twenty-Two (23,522) square feet in the aggregate or ten (10) feet in width in any
location from the Property's eastern border as identified on the ALTA survey prepared by
Chaparral Professional Land Surveying, Inc. dated May 24, 2007 attached hereto as 'Exhibit C.
Developer and City shall cooperate in good faith and enter into a First Amendment to this
Agreement to further define and finalize the location, width, and size(not to exceed the limits set
forth herein) of the Greenlawn Right-of-Way. City shall pay to developer the fair market value for
the Greenlawn Right-of-Way upon the Conveyance Date as determined by air appraisal dated
within ninety (90) days of" the Conveyance Date by a MAI appraiser mutually agreed upon in
writing by Developer and City (the".Fair Market Value'),
7.02 Greenlawn Boulevard -- General. Such First Arriendment to this Agreement referenced
in Section 7.01. above shall incorporate the foregoing terms. The Grcenlawn Blvd, Improvement's
shall not be Part ofthe Public Improvements described herein and the Maximum Reimbursement
Amount shall not apply to such (31reenlawn Blvd. Improvements, "I'lic design, construction, and
payment for the Greenlawn Blvd, Improvements shall be in accordance with Section 6.04.
ARTICLE VIII
MISCEI.A.,ANEOLTS
8.01 Mutual Assistance. The City, the TI-I'D Corp, and the Developer will do all things
reasonably necessary or appropriate to carry out the terms and provisions of this Agreement, and
to aid and assist each other in carrying out such terms and provisions in order to put each other in
the same economic condition conterriplated by this Agreement regardless of any changes in public
policy, the law, or taxes Or assessments attributable to the Property.
8.02 Default; Remedies.
(a) No Party shall be in default tinder this Agreement until notice ofthe alleged failure
Of Such Party to perform has been given(which Notice shall set forth in reasonable detail the nature
of the alleged failure)and until such Party has been given a reasonable time to Cure or to commence
efforts to cure the alleged failure, Such reasonable time determined based on the nature of the
alleged failure, but in no event less than 30 days or more than t 80 (lays after written Notice of the
alleged failure has been given. In addition, no Party shall be in default under this Agreement for
a non-monetary default if", within the applicable cure period, the Party to whom the Notice was
given or another Party begins performance and thereafter diligently and continuously pursues
performance until the alleged failure has been cured.
(b) If a.Party is in default beyond any applicable notice and cure period, the aggrieved
Party may, at its option and without prejudice to any other tight or remedy tinder this Agreement,
10
seek any relief available at law or in equity, including, but not linuted to, an action under the
Uniform Declaratory Judgement Act, specific performance, mandamus, and injunctive relief.
Notwithstanding the foregoing, however, no default under this Agreement shall:
(1) entitle the aggrieved Party to ten-ninate this Agreement; or
(ii) adversely affect or impair the current or future obligations of the C`ity to
provide water or sewer set-vice or any other service to the Property or Project; or
(iii) entitle the aggrieved Party to seek or recover consequential monetary
damages of any kind.
(c) In the event any legal action or proceeding is commenced between the Parties to
enforce provisions ofthis Agreernent and recover damages for breach, the prevailing party in such
legal action shall be entitled to recover its actual reasonable attorney's fees and expenses incurred
by reason ol. such action, to the extent allowed by law.
8.03 Undocumented Workers. The Developer certifies that, during the term of this
Agreement, it does not and will not knowingly cryiploy an undocumented worker for the
construction of the Public Iniprovements in accordance with Chapter 2264 of the Texas
Gove.i.-tirrient Code, as amended. INLIFing the term ofthis Agreement,the Developer is convicted
of a violation under 8 US.C. § 1324att), the Developer shall repay the amount of the public
subsidy provided tinder this Agreement as required by law. Pursuant to Section 2264.101, Texas
Government Code,a business is not liable f6r a violation of'Chapter 2264 by a subsidiary,affiliate,
or franchisee of the business, or by a person with whom the business contracts.
&04 Binding.Effect. "Phis Agreement shall be binding on and inure to the benefit of the Parties,
their respective successors and assigns,
8.05 Assignnient, Except as otherwise provided in this section, the Developer may not assign
all or part of its rights and obligations under this Agreement to a third party without the express
written, consent of the City, which consent shall not be Unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing,the Developer may assign (without the City's consent) all
I
or part of its rights and obligations under this Agreement to an entity that is controlled by or under
common control with the Developer (a "Pertnittc.d.-T1s sie
Developer shall provide ,a copy of
any such assignment to the City within fifteen(15) (lays after the effective date ofthe assignment.
The City may not assign this Agreement to an.unrelated third party but may assignment to a City-
created economic development corporation or other City-created entity and shall provide a, copy
of the assignment to the Developer within fifteen (15) days after the effective date of' the
assignment to Such permitted assignee.Nothing herein shall prevent Devetoper frorn conveying or
leasing all or any portion of the Property or Project to a third party (e.g., sale of office b(,iilding,
ground lease of pad site; leasing of residential units or corni-nercial space; sale of land to developer
of hotels or multifamily,etc.), and no such conveyance or lease shall be considered an Assignment
11
of this Agreement unless such third party expressly assumes the rights and obligations of
Developer hereunder in accordance with this Section 8,05.
8.06 Aniendm.ent. This Agreement may be amended only by the mutual written agreement of
the Parties. As the Parties continue work on the pre-development activities contemplated herein
and prepare the various agreements, plans, applications, and approvals referenced herein in
connection with the design and construction of the Public Improvements and the design,
developt-nerit, and financing of the Project, the parties will cooperate in good faith, as necessary,
to finalize such documents, and, if necessary,to amend this Agreement to reflect th.e terms of such
agreements, plans, applications, and approvals.
8.07 Notice. Any notice and or statement required and permitted to be delivered shall be in
writing and be deemed delivered by actual deliver-y, by electronic mail, or by depositing the same
in the United States mail, certified with return receipt requested, postage prepaid, addressed to the
appropriate party at the following addresses (each, a"Notice"):
If to City:
City of Round Rock,
221 E. Main Street
Round Rock, TX 78664
Attn: City Manager
Phone: (512) 218-5400
Email: c'
as�
With a required copy to:
Sheets& Crossfield
309 E. Main Street
Round Rock, X 78664
Attn: Stephan L. Sheets
Phone: (512) 255-8877
Entail: qcvc°O, crrlawxom
If to the Developer:
M4 Greenlawn, LI-C"
c/o Mark IV Capital
4450 MacArthur Blvd., Second Floor
Newport Beach, CA 92660
Attn: Regional Vice President
Phone: 949-509-1444
Ernail:
With a required copy to:
12
M4 Greenlawri, Lf-C
C/o Mark. IV Capital
4450 MacArthur Blvd., Second Floor
Newport Beach, CA. 92660
Attn: Chief Executive Officer
Phone- 949-509-1444
Email:
Either Party may designate as diflcrent address at any time; upon written Notice to the other Parties.
8.08 Interpretation, Each of the Parties has been represented by counsel of their choosing in
the negotiation and preparation of`this Agreement. Regardless of which party prepared the initial
draft of this AW! eeirient, this Agreement shall, in the event of any dispute, however its meaning or
application,be interpreted fairly and reasonably and neither more strongly for or against any Party.
8.09 Applicable Law, This Agreement is made, and shall be construed arid interpreted, under
the laws of the State ofTexas and venue shall lie in Williamson County, Texas,
8.10 Severability. In the event any provisions of this Agreement are illegal, invalid or
unenforceable under present or future laws, and in that event, it is the intention of the Parties that
the remainder of this Agreement shall riot be affected. It is also the intention of the Parties of this
Agreement that in lieu of each clause and provision that is found to be illegal, invalid or
unenforceable, a provision be added to this Agreement which. is legal, valid or enforceable and is
as similar in tern-is as possible to the provision found to be illegal, invalid or unenforceable.
x.1.1. Paragraph Headings. 'Fhe I)aj-a,,,,ral)li headings contained in this Agreement are for
convenience only and will in, no way enlarge or limit the scope or meaning of the various and
several paragraphs.
8.12 No 'Yhird Party Beneficiaries. This Agreement is riot intended to confer any rights,
privileges, or causes of action upon any third party.
8.13 Force Majeure. Except as otherwise provided herein, an equitable adjustirient shall be
rnade for delay or failure in perfon-ning if such delay or failure is caused, prevented, or restricted
by conditions beyond that Party's reasonable control (each, an "Event of Force M I eure"), Ali
1 -.11.vent U---
Event of Force Majeure for the purposes of this Agreement shall include, but not be firnited to,
acts of God, fire; explosion, vandalism; storm or similar occurrences; orders or acts of military or
civil authority; changes in law, rules, or regulations outside the control of the aft'ected Party;
national emergencies or insurrections; riots; acts of terrorism; or Supplier failures, shortages or
breach or delay; unusual weather events; a recession; and unusual delays in obtaining City
approvals of plats, permits, or other development approvals required to construct and operate the
Project. For purpose ofthis SS
`section ,13, "recession" shall rnean a recession consisting oil'two (2)
consecutive quarters of negative economic growth as measured by the gross domestic product for
the Austin-Rourid Rock TX metropolitan area according to the U.S. Department ofCornmerce,
Bureau of Ecoriornic Analysis. Except as otherwise expressly provided herein, there shall lie an
equitable adjustment allowed for performance Under this Agreement as the result of any Event of
13
Force Majeure (it being agreed that a day-for-day adjustment for each (lay of"an Event of Force
Majeure shall be deemed equitable).
8.14 Exhibits. The following exhibits are attached and incorporated by reference for all
purposes:
Exhibit A: Property Description and Depiction
Exhibit B: Public Improvements
Exhibit C: ALTA Survey
Exhibit D: Greenlawn Blvd. Improvements
Exhibit E: Calculation of the Hurdle Reimbursement Amounts
8.15 No Joint Venture. It is acknowledged and of by the Parties that the tears lierc(,-)f are
not intended to and shall riot be deemed to create any partnership or joint venture among the
Parties. The City, its past, present and future officers, elected officials, employees and agents of
the City, do not assume any responsibilities or liabilities to any third party in connection with the
development of the Project or the desig
pi, construction or operation of any Portion of the 1'roject,
8.16 Terve. This Agreement shalt become enforceable upon its Effective Date and shall expire
upon the earlier of (i) the 90"' day following the 201" anniversary of the Effective Date or (ii)
Developer's substantial completion of the Public Improvements and Greenlawn Blvd.
Improvements and the City's acceptance of`same and the Substantial completion of the Project in
accordance with Section 5.01. and Section 5.02 on or before the construction deadlines
contemplated by Section 5.04.
[REMAINDER OF PAGE INTEN'nONALLY BLANK]
1.4
EXECUTED to be effective as ofthe Effective Date.
OU
CITY OF ROUND ROCK, TEXAS,
a home rule city and municipal corporation
By:___
Craig Morgan, Mayor
APPROVED as to furan
-
Stephan L. Sheets, City Attorney
15
ROUND ROCK TRANSPORTATION
AND ECONOMIC DEVELOPMENT
CORPORATION,
Craig Morgan,, President
APPROVED as to form:
Stephan L Sheets, Corporation Attorney
16
M4 GREENLAWN, LLC
a Calif'tma limited liability company
By.
� v!
17
EXIIIBrr A
PROPERTY DESCRIPTION AND DEPICT ION
ISee at!achedi
18
EXHIBIT"A"
PROPER7'Y DI.,SCRIP'FION
Offico:612443-1724
Professional Land Surveying,Inc. Far 612441-0997
Surveying and Mapping 2007 Monchaca Road
BUM,no Ono
AW16.ToyAs 70704
$5,492 ACRES
TRAVIS AND WILLIAMSON COUNTIES,TEXAS
A DESCRIPTION OF 65.492 ACRES OF LAND (APPROX. 2,852,622 S.F.) IN THE
MEMUCAN HUNT SURVEY,ABSTRACT NO,2713,AND THE SOCRATES DARLING
SURVEY NO. 102, ABSTRACT NO, 232 IN BOTH TRAVIS AND WILLIAMSON
COUNTIES,TEXAS, BEING A PORTION OF A 120.668 ACRE TRACT DESCRIBED
IN A GENERAL WARRANTY DEED TO DELL COMPUTER HOLDINGS,L.P.,DATED
MAY 14, 1903, AND RECORDED IN BOTH VOLUME 2306, PAGE 863 OF THE
OFFICIAL RECORDS,WILLIAMSON COUNTY,AND VOLUME 11938,PAGE 1764 OF
THE REAL PROPERTY RECORDS OFTRAVIS COUNTY, TEXAS; SAID 05,492
ACRES BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS
FOLLOW&.
BEGINNING at a V2'rebar with cap set In the south right-cf-way line of Texas State
Highway 46 (rkjht-of-way width vanes), and the east line of Lot 2, ftek 1, Somtes
Addition,Phase 2,a subdivision of record In Volume 06,Page 161 of the Plat Records
of Travis County,and In Document No,9605675 of the Official Records of Williamson
County, Texas, for the southwest corner of a 6.990 acm tract described as TxDOT
Parcel 104 Part I In Document No. 2002099984 of the OMclal Records of Williamson
County,Texas,ftorn which a TxDOT Type It monument found bears South 76*08'14'
West,a distance of 76149 feet,
THENCE with the south right-of-way line of State Highway 45 and the south tine of
'rxDOT Parcel 104 Part I and over and across the 120.658 acro tract,the following six
(6)couraos:
1. North 76*08'14*East,a distance of 1105.32 feet to a 1/2rebar vdth cap set;
2. With a curve to the left having an arc length of 13101 feet,a radius of 5788,00
reat,and a chord which bears North 75130'68*East,a distance of 13161 feet to
a 1)2'robar with cap set;
1 North 74161'06'East,a distance of 280.07 feet to a TxDOT Type 11 rnonument
found;
4. With a curve to the left,having an art Length of 372.49 feet,a radius of 6788,00
feet,and a chord which bears North 72157'45*East,a distance of 372.43 feet to
a TxDOT Type 11 monument found;
WRh a curve to the right,having an arc length of 366.84 feet,a radlus of 571040
19
Page 2
feet,and a chord which bears North 72.565W East,a distanoo of 36518 feet to
a TxDOT Type 11 monument found;
0. North 74*54'01*East,a distance of 90.39 feet to a M'rebor with cap set In the
northerly line of the 120,658 acre tract for an mals point In the south right-of-way
line of State Highway 45 and the southeast comer of TxDOT Parcel 104 Part 1;
THENCE South 1&,17"03*East with the northerly fine of the 120,655 acre tract and the
south right-o€-way line of State Highway 45,passing at a distance of 0.08 feet a 1{2'
tabor with aluminum TYDOT cap found for the northwest cornet of Lot 2, Black'W,
Amending Met of Ramtron Subdivision, a subdivision of record In Document No,
190000349 of the Official Public Records,T County,and In Cabinet R.Slide 384 of
the Plat Records,Williamson County,Texas, also being an angle point In the south
right-of-way line of State Highway 45,and continuing Witt the west line of Lot 2 for a
total distance of 285.66 feet to a V Iran pipe found for an angle point In the northerly
line of the 1120.668 acre tract and the southwest comer of said Lot 2;
THENCE North 7444447'East,with the northerly line of the 120X58 acre tract and the
south line of Lots 2 and 3,Block W,of the said Amending Mat of Rarntron Subdivision,
a distance of 486,30 foot to a 314'Iron pipe found for an angle point of the 120.658 acre
tract and the southeast corner of said Lot 3,Block'A";
THENCE North 15"17'07"W ,with the northerly line of the 120.658 acre tract and the
east line of Lots$and 4,Stock W,of the said Amending Plat of Ramtron Subdivision,
passing at a distance of 267.65 feet a 1(2'tabor with aluminum TxDOT cap found for
the norlheast comer of sold Lot 4, Block W,and an angle point In the south 9ght-of-
way line of State Ht9hway 45,for a total distance of 28132 feet to a 1/2'tabor with cap
set for an angle point In the south right-of-way ling of State Highway 45 and the
southwest comer of a 0.081 acre tract desc4bed as TxOOT Parcel 104 Part 2 In sold
Document No.2002099984:
THENCE North 74145'33*East,with the south light-of-way line of State Highway 45 and
the south fine of TxDOT Parcel 104 Part 2,and over and across the 120,658 acre tract,
a distance of 19.85 feet to a 1W mbar with cap set In the south right-of-way line of
State Highway 45 and the west tine of a 17803 acre tract described In Volume 13028,
Page 1774 of the Real Property Records of Travis County, and In Document No.
9742150 of the Official Records of Williamson County,Texas,also being the east line of
the 120,668 acre tract,for the southeast cornet of TxOOT Parcel 104 Part 2,from which
a TxDOT Typo 11 monument found bears North 74°45'33"East,a distance of 74,09 feet,
TH1INCE with the west line of the 3.7603 acre tract and the east line of the 120,658
acre tract,the fcIlovAnq two tracts:
1. South 15*20*31*East,a distance of 30712 feet to a 1/2'rebar found:
20
Page 3
2, South 62'41`25`East,a distance of 265.73 feet to a 314'Iron pipe found In the
northmst tine of a 43 acre tract described In Document No. 965p63S of the
Official
Page 4
Addition,Phase 2,and continuing across the 120,658 acro tract,a distallco of 476.75
feet to the POINT OF BEGINNING,containing 65.492 acres of land,more or less.
Sure on the ground on April 30, 2007. Searing Basis: Grid Azimuth for Texas
Central Zone, 1903193 HARN values from LCRA control network,Attachments:Survey
Orawing 659-001-801. Caps placed an act rebars are plastic, stamped 'Chaparral
4905" S-12,
Steveno
Ruglter kdrof s lanai Land Surveyor
a el
0�SM
State of 9 o�5940
%
rA,
fr il�
22
. .
� Itl
�y
3
h �
I
i
ff
f }
i
i
i"
EX111BIT'B
ift"B1,11C IMPROVEMENTS
THE DISTRICT- ONSITE INFRASTRUCTURE
Sidewalks& Concrete (incl, curb, gutter, and driveways) > 1,697,863
Roadways (incl. lime stabilization, base, asphalt, striping, and signs) 1,988,965
Florid Excavation $ 344,573
Street Lighting (Posts, Electrical Conduit, & Light Pole Bases) $ 1,035,375
Handicap Ramps $ 96,250
Water 684,200
Wastewater 390,500
Storm Sewer 853,600
Electric 1.,316,39"7
Ga i 105,E.500
Landscape& Irrigation 5,35,445
Data & Communications 506,000
Cost Contingency 1,192,151
Insurance 85,993
General Conditions 650,106
Contractor's Fee $ 401,982
Design $ 675,000
Grand Total $ 12,560,000
24
V.
"tea ""gra, ����`�" ars `" "'-'air• , Vis„ � ��+y„
t � �'
r �,e�» r;
r raa� `� ro y
� "
'F
HyY. �P
o
00
N, lk
'N
%
5
EXHIBrr c
ilk
put al
f ! sa 1 F
;III two
bra%
Hai €�, -
z5i IIt
e
sR§.
4
�# �_
-
;n 7
26
t
E
g
'.
it § €
a
>
e
e
L --
e a
k'
� d
{
m -- I N= s
#3 dip N y S f< f
WW":
ffp
E
4 i =
t _
10141 f
rF e= k��+1
E11a fs 'Elt 1 aj t #:;
Exinur D
GR?;E" I.,.1:WN BLVD. tMPROVE"MI:iA'T!*
OWN it 4
WOO
r ;
i� rid
r
� ,, ����w ^ w� /✓, r "
i�r�'. rwlrr�W"�ia;�df10R0
N,r✓k%x"'a„ w+'�'" wurM �' a it ��^ � , "� �
a✓Mw � � ��'- f �*Iw r r�
r r rh9" ,vw 91� „� I �1 �11 41 T r/'✓?
llsetMr/"r
w r1 �; lip r r ' �''""��471✓j i ,j��� � 1 �✓f��7{$
���r rr✓ � i l r�" ✓, � r f a y 7 0 l � r'.
� 1�� i � ;; i r r i�r r✓l i�✓�✓�l'i'�'r,'
iil;✓ rV '%1 P ✓� 9 ✓✓rra%I a I rr ,� � I� I�� q� ! l f! w
� �a � r n ii/l� �� w m aVU, ik Ja �i+lnaAr r*✓
i
i
k
11� it r r � �; nrli°�9fi 1 ifr�h✓ k r✓ n
'h, �I �'I� �a "�� ���r �rtJa�✓E��ilt i/✓r �a 1 ri
r��:'`xij a+. r � �� �� r I f i v I��' I )ui't ✓rlil�)� �r✓if✓� r1��lh� r�lr�f{�
r i. a � r 1�✓r�°i rtil s r r
ria✓ i ! 1�1 r � � � ,.
a'r }I ,�,� r� w���i��, ra. i� s a� "�'✓>5�i r �,� ,fla � ��
?r it 'i ✓ ' d
�, rrr r r �✓�� rr !w ar ri+ r U, i �-
a
„p, �F '�%eia��Yil rw a� r a y Ir ✓� ✓ + f �q✓��r r ��`
i'. r J �j f 7 a✓ l "raAk SAY i(a I f` f�� 7
�,�
i
Pi°" ' d� kMir d { z r � ✓i�r1 u��j����ra)'"i7���� ✓?/��
,, ,;', a 4ri•, r� F�)i ✓q�Yrr��U rr ftR Ill,.
�a r ! i� �Yl l �,�rr, !` ✓' 1 �',+✓btii/r (✓✓l✓bi rp
,, a a, t ,� r I7 a ,✓ N"r„d r..�'rN 1 r^i'/�Jk✓kG(M`kl iso
M :w 1e mk'' ”' `li ,f o a'n ✓ Gr r ri,ir ✓.
r rr 1✓rs y t r r,� rrr �� fir✓�l r� z�✓'- ✓ �i9✓✓I �✓k I � 1�i r .:, ,, ,,„ : kl✓��l t� 11 x r J 1 r i r�
✓ 'd�rjM N ,1 ,. a'I�1 Yr irr tihi. r k fl /{�✓✓i��, rFir
� ! �{, �,aa � � r<r g��/rrl �✓s a %"�'a^$ a vi . �J „tri���r�li✓ 4 ✓✓� ,
� o k� i It�g;' ✓��)✓rr��r,rt lk ,�D "'S3j��✓ r s ��I�'
M 'm, /t v,r"r ' �%Yl'1,aiN�r 1 a �� 'ki fii i✓i �pa
tai � e,,,,,,, f `, w ' 'y' .,�'. „�ll� i,, 'I`rz�.i:�a� �s aCdwkw,nvl`,aa(En��/airs;. �✓.�..�a�,�I✓✓
'fhc crosshatched arca in the diagram above depicts approximate tocatioaa of the <Irc enlaw n Blvd.
Improvements to be constructed by City pursuant #:ca the terms and conditions of this Agreement,ent, "rhe
tlrieenlawn Blvd. Improvements shalt include: widening; Greeta9.awn Blvd, to approximately 150 feet;
construction of medians- histatlatioaa of curbs, gutters, sidewalks, and street lights; landscaping; and any
other work required to construct the (3rceenlcawn I31vd. Improvements in accordance e with theCity's
spec,akic,ations R)r 150' wide rigla:ts-cal-away.
28
EXIII[Brr E
CALCULATION OF THE HURDLE REIMBURSEMENT AMOUNTS
First Hurdle Reimbursement Amount
The First Hurdle Reirriburseinent Amount shall be calculated as a proportionate share of"twelve percent
(12%) of the Maximum Reimbursement Amount previously delivered to Developer, which proportionate
share shall be the percentage
f
e othe difference between the 120,000 gross square feet required to be
constructed on or before the First Hurdle hate and the actual gross square feet constructed by Developer
on or, before the First Hurdle Date, plus the Interest Amount commencing on the date the Maximum
Reimbursement Amount was fully paid to the Developer by the City and/or"FED Corp., as applicable.
Second Hurdle Reimbursement Amount
The Second Hurdle Reimbursement Amount shall be calculated as a proportionate share of twenty-tive
percent (25'%) of the Maximurn Reimbursement Amount previously delivered to Developer, which
proportionate share shall be the percentage of the difference between the 250,000 gross square feet required
to be constructed on or before the Second Hurdle Date and the actual gross square feet constructed by
Developer on or before the Second Hurdle Date, plus the hitcrest Amount commencing on the (late the
Maximurn Reimbursement Amount was fully paid to the Developer by the City and/orTED Corp., as
applicable. Notwithstanding the foregoing, the Second Hurdle Reimbursement Amount shall exclude any
portion of the First Hurdle Reimbursement Amount not recouped by Developer, if any, as set forth in
Section 6.03 of the Agreement.
Third Hurdle Reimbursement Amount
The "Third Hurdle Reimbursement Arriount shall be Calculated as a proportionate share of the Maximum
Reimbursement Arnount previously delivered to Developer, which propor-tinnate share shall be the
percentage of the difference between the 1,000,000 gross square feet required to be constructed on or before
the Third Hurdle Date and the actual gross square feet cet constructed by Developer on or before the'J"hird
Hurdle Date, plus the Interest Amount commencing on the date the Maximum Reimbursement Arnount
was fully paid to the Developer by the City and1or'l I ED Corp.,as applicable, Notwithstanding the foregoing,
the Third Hurdle Reimbursement Amount shall exclude any portion of the First Hurdle Reimbursement
Amount and/or Second Hurdle Reimbursement Amount riot recouped by Developer, if any, as set forth in
Section 6.03 of the Agreement,
Example
By way of' example only, if`threw Project contains 114,000 gross square feet as of the First Hurdle Date,
200,000 gross square feet as of the Second Hurdle Date, and 900,000 gross square feet as of the Third
Hurdle Date, and the City andJor TE'D Corp., as applicable, had delivered the entire Maximum
29
Reimbursement Amount to Developer on February 14,2020(prior to the First hurdle Date),then Developer
would be responsible for refunding:
a. on the First Hurdle Date, the amount of$84,780,calculated as follows:
• (I - 114,000 gross square f�,et/l 20,000 groats square feet)x $1,507,200 -.$75,360
• Interest Amount=$9,420
• First Flurdle Reimbursement Amount: $75,360 4-$9,420=$84,780
b. on the Second Hurdle Date, assurning that the arnount refunded to the City after the First Hurdle
Date has not been recouped by Developer prior to the Second Hurdle Date,the amount of$700,220,
calculated as follows:
• (I - 200,00() gross square feet/250,000 gross square feet) x $3,140,000 - $84,780
$543,220.
• Interest Amount= $157,000
• Second Hurdle Reimbursement Amount: $543,220 1-$157,000 =$700,220
e. on theThird Hurdle Date,assuming that the amount refunded to the City after the First Hurdle Date
and Second Hurdle Date have not been recouped by Developer prior to theThird Hurdle I..)ate, the
amount of$1,099,000,calculated as follows:
• (1 900,000 gross square feet/1,000,000 gross square feet) x $12,560,000 - $84,780 --
$700,220 =$471,000.
• Interest Amount=$628,000
• Third Hurdle Reimbursement Amount: $4'71,000 +$628,000=$1,099,000
30